We also have referred to internal dispute resolution mechanisms at the employees place of work, such as the grievance procedures.
However, if the dispute has not been resolved, or if the employee has been dismissed for any reason, these disputes can be resolved through the statutory processes as provided by the labour legislation.
The CCMA and the bargaining councils have been incredibly successful and effective in handling disputes.
There is a formal process that has to be undertaken by either the employee or his/her representative. The initial stage of declaring a dispute could be done by completing the necessary statutory form as outlined by the Labour Relations Act in terms of various sections of that act. This form may be downloaded from the Department of Labour website and to be used with regard to referrals to either the CCMA or the bargaining councils. The form is in similar format for both institutions.
Known as LRA Form 7.11, it must be completed and signed by the employee in question.
The form enables a person or an organisation to refer disputes to the CCMA for conciliation and/or arbitration. It can be completed by anyone but must be signed and agreed to by the employee, the trade union or the employer’s organisation. The form is simple, but help is at hand at the CCMA which will efficiently and expertly help you complete the form if there are any problems.
If there is more than one employee to the dispute and the referring party is not a trade union, then each employee must supply his or her personal details and place a signature on a separate page which must be attached to the form.
Obviously, trade unions can refer a dispute on behalf of many individuals and this would clearly have the details of the trade union.
It is worth having the form checked either at the CCMA or by a trade union or an expert before it is finalised and sent on to the necessary individuals.
Once the form, LRA 7.11, is completed and signed, then it would have to be sent firstly to the employer and once that is done, the form is passed on to the regional office of the CCMA in the region where the dispute arose.
Proof of the service on the employer must be given to the CCMA. It is recommended that copies of the form and the proof be kept by the individual who is referring the dispute.
Once the CCMA receives the form and is satisfied that it is properly completed within the time necessary, and that it has proof that the form was served on the employer, then it will allot a case number to that particular dispute.
Once the CCMA accepts the dispute and allots a case number, it will endeavour to resolve the dispute within 30 days.
If the CCMA has not reverted to the individual within the 30 days, then the individual should enquire immediately as to what has transpired with the dispute.
It must be remembered that a copy of the LRA Form 7.11 can be sent to the other party by registered post or by hand, or by fax with a confirmation slip or by e-mail, with a confirmation slip. If, in fact, the dispute concerns an unfair labour practice, that dispute has to go through the same process and be referred within 90 days and not the 30 days allowed for all other dispute.
It must be remembered, that even if you are out of time to refer your dispute to the CCMA or the bargaining councils, you may apply for condonation.
This is merely a special application where you would explain as to why you are late with the referral.
There is a section in the referral form allowing you to object to the conciliation/arbitration process which you would have to separately sign.
The process means that if the CCMA is unable to resolve the dispute through mediation, then it would immediately go on to an arbitration.
However, you may object to this process which would then mean after mediation you would have to fill in another form and go through the whole process of referral once again to ensure that the matter can be heard at an arbitration.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media